Citation Nr: 0521564
Decision Date: 08/10/05 Archive Date: 08/19/05
DOCKET NO. 04-14 034 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an initial disability evaluation in excess of
30 percent for anesthesia of the left mandibular nerve,
including the left lip and left upper face.
REPRESENTATION
Appellant represented by: American Ex-Prisoners of War,
Inc.
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans Appeals (BVA
or Board) on appeal from a February 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri in which the RO granted service
connection for anesthesia of the left mandibular nerve,
including the left lip and lower left face, and assigned a 10
percent evaluation effective August 21, 2002. The veteran
expressed disagreement with the assigned disability
evaluation, and in a May 2004 rating decision, the RO
increased the disability evaluation to 30 percent effective
from August 21, 2002. The veteran, who had active service
from May 1968 to May 1971, continued to express disagreement
with the assigned rating and appealed to the BVA.
Thereafter, the RO referred the case to the Board for
appellate review.
The Board notes for the record that a rating decision dated
in November 2004 denied service connection for erectile
dysfunction and for a testicular disorder. The RO received a
statement from the veteran dated in March 2005 in which the
veteran referenced symptomatology associated with the left
testicle and cancer of the testes. The Board is uncertain as
to whether the veteran intended the statement to serve as a
Notice of Disagreement to the November 2004 rating decision
or desired it to act as a claim for service connection of
additional genitourinary disorders other than erectile
dysfunction or a testicular connection. This issue is
referred to the RO for further clarification.
Additionally, the Board notes that the veteran's
representative submitted a statement in April 2005 in which
he asserted that an increased rating is warranted in this
case because of chronic pain and emotional dysfunction, and
possibly post-traumatic stress disorder. The Board considers
this letter to constitute a claim for service connection for
a psychiatric disorder and refers it back to the RO for
further action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's anesthesia of the left mandibular nerve
does not manifest complete paralysis.
CONCLUSION OF LAW
The schedular criteria for an initial rating in excess of 30
percent for the veteran's anesthesia of the left mandibular
nerve, including the left lip and the lower left face, are
not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.159, 4.1 - 4.14, 4.124, 4.124a, Diagnostic
Code 8205 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. The Veterans Claims Assistance Act
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA) that became law
in November 2000. The VCAA provides, among other things,
that the VA will make reasonable efforts to notify a claimant
of the relevant evidence necessary to substantiate a claim
for benefits under laws administered by the VA. The VCAA
also requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
First, the VA has a duty under the VCAA to notify a claimant
and any representative of the information and evidence needed
to substantiate a claim.
The Board acknowledges that the November 2002 letter sent to
the veteran informed him of the evidence necessary to
establish entitlement to service connection for anesthesia of
the left mandibular nerve, but not the evidence necessary to
substantiate his claim for a higher initial rating
evaluation. However, since the veteran raised this increased
rating issue in his Notice of Disagreement following the
grant of service connection for anesthesia of the left
mandibular nerve, further notice of the VCAA does not appear
to be required according to an opinion from the VA General
Counsel. See VAOPGCPREC 8-2003 (Dec. 22, 2003) ("if, in
response to notice of its decision on a claim for which VA
has already given the Section 5103(a) notice, VA receives a
notice of disagreement that raises a new issue, Section
7105(d) requires VA to take proper action and issue a
statement of the case if the disagreement is not resolved,
but Section 5103(a) does not require VA to provide notice of
the information and evidence necessary to substantiate the
newly raised issue"). The Board is bound in its decisions by
the precedent opinions of the Chief Legal Officer of the VA.
38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a).
Additionally, the Board notes that the veteran and his
representative have not contended or argued that any defect
or deficiency in the VCAA notice that may possibly be present
has resulted in any prejudice in the adjudication of his
appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
The Board finds that the rating decisions in this case and
the Statement of the Case issued in connection with this
appeal have notified the veteran of the evidence considered,
the pertinent laws and regulations and the reasons his
service-connected disability was assigned a 30 percent
evaluation.
Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim. In this regard,
the veteran's service medical records and VA medical records
are associated with the claims file. Additionally, the
veteran was afforded two VA examinations in order to assess
the current severity of the veteran's service-connected
disability. Neither the veteran nor his representative have
made the RO or the Board aware of any additional evidence
that needs to be obtained in connection with his claim.
Accordingly, the Board finds that all relevant evidence
necessary for an equitable disposition of the veteran's
appeal has been obtained and the case is ready for appellate
review.
B. Evidence
Historically, a rating decision dated in February 2003
granted service connection for anesthesia of the left
mandibular nerve, including the left lip and lower left face,
and assigned an evaluation of 10 percent effective August 21,
2002. The rating decision was based upon a review of the
veteran's service medical records dated from May 1968 to May
1971 and VA examinations conducted in January 2003.
The veteran was afforded a VA peripheral nerve examination in
January 2003 (incorrectly dated as January 2002). The report
noted that the veteran had oral surgery performed in December
1969 that resulted in a traumatized or compressed left
mandibular nerve. Physical examination revealed an area of
anesthesia from the midline to the left, both upper and lower
lip and chin, and this area of anesthesia extended laterally
along the distribution of the mandible to include one-third
of the face to an area about 3-centimeters anterior to his
ear. The condition resulted in the veteran dribbling food
and saliva out of the corner of his mouth when he would eat,
and required him to wipe his mouth often. The examiner
diagnosed the veteran with anesthesia of the left upper and
lower lip and lower left face, secondary to apparent surgical
severing of the middle and long buccal branches of the
mandibular branch of the trigeminal nerve.
The veteran also underwent a VA dental and oral examination
in January 2003. A review of the medical records showed that
the veteran's left mandibular nerve was traumatized while in
service during a periodontal procedure. The veteran
developed paresthesia that did not resolve when he was
discharged from the service nor had it resolved at the time
of the examination. The examiner considered this to be
anesthesia. Physical examination revealed that the veteran
had no feeling along the whole track of the left mandibular
nerve from the retromylohyoid area to the symphysis. He was
numb both buccally and lingually and his face was numb on
that side. He had a normal range of motion and could talk
normally. The examiner observed that the veteran had no
problems chewing, eating, or shaving but had problems with
saliva dribbling out of the corner of his mouth. The
remaining bone around the veteran's teeth was within normal
limits. As far as functional impairments, the examiner
stated that there were none.
In April 2003, the veteran submitted a letter constituting a
Notice of Disagreement regarding the 10 percent rating
evaluation assigned. He disagreed with the dental and oral
examiner's statement that he could shave without difficulty.
He asserted that shaving was in fact difficult because he
usually cuts or scrapes his face due to the numbness of his
jaw and tongue. He additionally stated he felt self-
conscious eating in public because he continually must wipe
his mouth with a handkerchief.
Thereafter, the veteran submitted additional statements in
support of his claim. The veteran's October 2003 statement
reported that the veteran has been scared of all dentists
since his surgical procedure. In a letter dated September
2003, the veteran asserted that he has trouble chewing food,
and that he needs dental treatment but is afraid to go to the
dentist. In a letter dated April 2004, the veteran asserted
that he only shaves once every 7 to 10 days because he cuts
his face when he shaves, resulting in bleeding. He reported
that he cannot eat solid food and must live on soft foods
such as soup, tuna and potted meat. He reiterated his fear
of dentists in this letter, stating that he is scared to
death to sit in a dentist chair for fear that he'll die.
In a rating decision dated in May 2004, the evaluation for
anesthesia of the left mandibular nerve was increased to 30
percent effective August 21, 2002.
C. Law and Analysis
The veteran has been assigned a 30 percent disability rating
for his service-connected anesthesia of the left mandibular
nerve under the provisions of 38 C.F.R. § 4.124a, Diagnostic
Code 8205 (2004). He contends that his anesthesia is more
disabling than currently evaluated and has appealed for an
increased rating.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
schedule for rating disabilities. The percentage ratings
represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases
and injuries and the residual conditions and civilian
occupations. Generally, the degree of disabilities specified
are considered adequate to compensate for considerable loss
of working time from exacerbation or illness proportionate to
the severity of the several grades of disability. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify
the various disabilities and the criteria for specific
ratings.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7. After careful consideration of the evidence,
any reasonable doubt remaining will be resolved in favor of
the veteran. 38 C.F.R. § 4.3. While the veteran's entire
history is reviewed when making a disability determination,
38 C.F.R. § 4.1, where service connection has already been
established, and increase in the disability rating is at
issue, it is the present level of the disability that is of
primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
However, in Fenderson v. West, 12 Vet. App. 119 (1999), the
United States Court of Appeals for Veterans Claims (Court)
discussed the concept of the "staging" of ratings, finding
that, in cases where an initially assigned disability
evaluation has been disagreed with, as here, it was possible
for a veteran to be awarded separate percentage evaluations
for separate periods based on the facts found during the
appeal period.
Ratings shall be based, as far as practicable, upon the
average impairment of earning capacity with the additional
provision that the Secretary of Veterans Affairs shall from
time to time readjust the Schedule of Ratings in accordance
with experience. In exceptional cases where the schedular
evaluations are found to be inadequate, an extraschedular
evaluation may be assigned commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities. The governing norm in
these exceptional cases is a finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1).
The veteran's anesthesia of the left mandibular nerve is
currently evaluated under 38 C.F.R. § 4.124a, Diagnostic Code
8205, paralysis of the fifth (trigeminal) cranial nerve.
Under this code, a 10 percent rating is warranted for
incomplete, moderate paralysis. A 30 percent rating is
warranted for incomplete, severe paralysis. A 50 percent
rating is warranted for complete paralysis. A note following
the diagnostic code states that the rating is dependent upon
the relative degree of sensory manifestation or motor loss.
The term "incomplete paralysis," with this and other
peripheral nerve injuries, indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree. The ratings
for the peripheral nerves are for unilateral involvement;
when bilateral, combine with application of the bilateral
factor. 38 C.F.R. § 4.124a.
The RO increased the veteran's rating evaluation from 10
percent to 30 percent based upon the veteran's statement and
re-review of the evidence. In doing so, the RO determined
that the veteran's disability constitutes severe, incomplete
paralysis rather than moderate, incomplete paralysis.
However, in order to receive an increase to a 50 percent
evaluation under Diagnostic Code 8205, the evidence of record
must show that the veteran's disability is reflective of
complete paralysis. In this case, no such evidence exists.
While the veteran's January 2003 peripheral nerve examination
and oral and dental examination noted that the veteran has
anesthesia of the left lip and lower left face, the dental
examination also noted that the veteran is able to use his
facial muscles correctly, he can talk normally and he has no
functional impairments. The remaining bone around the
veteran's teeth was also within normal limits. The veteran
does not have any problems actually eating or chewing, other
than his choice of food being limited (hard food in
comparison to soft food) and problems with saliva dribbling
out of the corner of his mouth. As such, the Board finds
that the record on appeal is devoid of evidence indicating
complete paralysis, and the veteran's disability does not
more nearly approximate the complete paralysis of the fifth
cranial nerve required for a higher rating. Therefore, the
disability is appropriately rated as 30 percent disabling.
On reaching this decision, the potential application of
various provisions of Title 38 of the Code of Federal
Regulations have been considered, whether or not they were
raised by the veteran, as required by the holding of the
Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991),
including the provisions of 38 C.F.R. § 3.321(b)(1). The
Board finds that the evidence of record does not present "an
exceptional or unusual disability picture so as to render
impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1). In this case, there has
been no assertion or showing by the veteran that his
anesthesia of the left mandibular nerve has resulted in
interference with his employability or necessitated frequent
periods of hospitalization. In the absence of such factors,
the Board finds that the criteria for submission for
assignment of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App.
337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
For these reasons, the veteran's appeal must be denied.
ORDER
An initial evaluation in excess of 30 percent for anesthesia
of the left mandibular nerve, including the left lip and left
upper face, is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs